On March 25, 2010, the Equal Employment Opportunity Commission (EEOC) issued final regulations implementing the ADA (Americans with Disabilities Act) Amendments Act, which was signed into law by George Bush on Sept. 25, 2008.

These regulations, which become effective May 24, 2011, provide clarification for the ADA Amendments Act. Specifically, the regulations state that the primary purpose of the ADA Amendments Act is to “make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.”

The ADA and the final regulations use a 3-prong approach to define disability:

A physical or mental impairment that substantially limits one or more major life activities; or

A record of a physical or mental impairment that substantially limited a major life activity; or

When a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor.

The regulations confirm that the definition of “disability” is expansive and should be broadly construed. Additionally, the regulations identify the following specific impairments that will be easily concluded to be disabilities that substantially limit a major life activity:

Deafness

Blindness

Intellectual disability

Partially or completely missing limbs

Mobility impairments requiring the use of a wheelchair

Autism

Cancer

Cerebral palsy

Diabetes

Epilepsy

HIV infection

Multiple sclerosis

Muscular dystrophy

Major depressive disorder

Bipolar disorder

Post-traumatic stress disorder

Obsessive-compulsive disorder

Schizophrenia

These regulations are intended to shift the focus away from the issue of whether someone is disabled to the issues of prohibited conduct and reasonable accommodations. What this means practically is that it will be easier to fall into the ADA definition of disabled and the court battles will likely be focused on whether an individual was denied reasonable accommodation.

To assist employers, the EEOC has published on its website a FAQ document as well as a Fact Sheet regarding these regulations.

For more information on the ADA and how it is also interacting with incentive-based corporate wellness programs, be sure to check out Hill, Chesson & Woody’s most recent Eyes on Benefits newsletter.

These days, most employers include background checks as a mandatory part of the hiring process, as they should. When conducting background checks it is very important that you follow the letter of the law. Here are three important considerations for your background checking process:

Are you complying with the federal Fair Credit Reporting Act (FCRA)? A lot of companies get derailed on the word “credit” – they feel that since they are not looking at the financial record of their applicant/employee that the FCRA does not apply to them. In reality, the FCRA actually applies to any sort of background check that is compiled by a third party, such as your background checking company. It is almost impossible to avoid using a third party in some part of the background check. Many companies and a lot of universities refer verification inquiries to third party companies that act as the repository, instantly bringing your background check under the purview of the FCRA.

Is your decision point job related? The Equal Employment Opportunity Commission (EEOC) rules are clear—you should only hold items against your applicant that are job related. If you are unable to show a correlation to the work your applicant needs to do, you are better off not considering the unrelated negative background check results when making your hiring decision. In fact, the EEOC has said that you must take into account “the nature and gravity of the offense or offenses for which the applicant was convicted; the time that has passed since the conviction and/or completion of the sentence; and the nature of the job held or sought.

Should you look at financial credit reports? The answer is yes, if it is important to the job requirements of the position for which you are hiring. Recent actions by legislators and the EEOC should make you take pause before requiring a financial credit report on all applicants. A good litmus test (unless you are in Hawaii, Oregon, Washington and Illinois) is if the position includes any of the following characteristics:

is a managerial position which involves setting the direction or control of the business;

involves access to customers’, employees’ or the employer’s personal or financial information other than information customarily provided in a retail transaction;

involves a fiduciary responsibility to the employer, including, but not limited to, the authority to issue payments, transfer money or enter into contracts; or

provides an expense account.

CAI works closely with its Background Checking clients to ensure they are fully compliant with local and federal laws. If you have questions about background checks, please contact Kevin von der Lippe at 919-878-9222 or 336-668-7746.

With recent changes in federal law and regulations, and increased government investigation efforts, employers should be sure that they understand which federal agencies enforce which laws and regulations.

The federal agency that enforces the most employment-related laws and regulations is the Equal Employment Opportunity Commission (EEOC). The EEOC was created by Title VII of the Civil Rights Act of 1964. The federal laws affecting the employment relationship enforced by the EEOC are:

Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex or national origin.

The Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.

The Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older.

Title I and Title V of the Americans with Disabilities Act of 1990 (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments.

Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government.

The Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which protects applicants and employees from discrimination based on genetic information in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral and other aspects of employment.

Recently, CAI members had the opportunity to learn more about Equal Employment Opportunity Commission (EEOC) charges during our Ask the Expert programs. The EEOC enforces Title VII, which prohibits discrimination or harassment based on age, disability, genetics, national origin, pregnancy, race/color, religion, or sex. Title VII also protects employees from retaliation for complaining about discrimination or participating in an investigation.

EEOC officials Thomas Colclough, Jose Rosenberg and Tina Burnside took questions from the audience and provided insight on the EEOC investigative process. Some of the key points from the presentations include:

1. Categories of Charges. The EEOC prioritizes charges as category A (charges that fall within the national or local enforcement plan, or other charges that will likely result in a cause finding), category B (charges that require additional information to determine the merit of the charge) or category C (charges suitable for dismissal).

2. Employer Notice. If a charge is filed against an employer, the employer will receive a Notice of Charge form from the EEOC within 10 days. The Notice of Charge will include the name of the employee making the charge, the nature of the charge, what action is required by the employer and the date that a response is required.

3. Mediation Option. Mediation is free and conducted by EEOC mediators or contracted mediators, and the parties (employer and employee) decide on the course of action (facilitated by mediators). There is no decision on “fault.” The mediator drafts an agreement based on the negotiated settlement by the parties, and all parties sign the agreement, which is binding. Unsuccessful mediation will result in the charge going back into the investigation process. Category A charges are not eligible for mediation.

5. Position Statement. Employers are normally given 30 days from the date the Notice of Charge is mailed to respond to the EEOC with a Position Statement. The Position Statement is one of the most critical documents the employer submits to the EEOC. Employers should spend time developing the Position Statement to answer each issue raised by the charging party.

6. Conciliation. If the EEOC determines there was merit to the charge after the completion of the investigation, a Letter of Determination will be issued to the parties to invite them to participate in conciliation. The settlement may include damages such as back pay, front pay, hiring, reinstatement, promotion, reasonable accommodation, attorney’s fees, and non-monetary relief like training, as well as a provision not to discriminate. The conciliation agreement includes a provision prohibiting the charging party from disclosing details about the settlement. These agreements are binding and enforceable in court.

7. Settlement. Settlement of the charge may be made at various points in the process. If settled after a lawsuit is filed, the settlement is not confidential. In this case, the EEOC settles by Consent Decree, and the court monitors the agreement for three years.

“We’re going to crack down on violations of equal pay laws -– so that women get equal pay for an equal day’s work,” announced President Obama in his State of the Union address on Jan. 27, 2010. He made good on that promise the following month by unveiling his National Equal Pay Enforcement Task Force and Equal Pay Initiative to “improve compliance, public education, and enforcement of equal pay laws.”

This is a serious development that employers must consider as to how it can apply to them. One of the key members of this force is the Equal Employment Opportunity Commission, which has added more than 100 positions over the last year that can review discrepancies. It is a major initiative.

If the federal government runs a pay audit, finds violations of the laws and successfully prosecutes a company for them, the penalties can be severe. They include, but are not limited to, having a third party impose new pay practices on the business and fine the firm for back pay and interest for up to three years.

Employers need to take steps in advance of any possible federal audits. You should review in-house any pay equity issues that may exist between male and female employees and determine whether they can be defended legitimately. If not, you should correct them immediately. This review should involve consideration of all of your company’s policies and procedures as well as a statistical analysis of compensation data.

CAI offers details on how your company can perform an in-house audit for possible pay inequities. To learn about them, or for additional information on the initiative and its impact on your business, please call a member of CAI’s Advice and Counsel team at (919) 878-9222 or (336) 668-7746.

Government agencies will be stepping up their enforcement activities even more in 2010. Consider:

U.S. Department of Labor budget includes $25 million and the addition of 100 enforcement personnel to identify and penalize employers who improperly misclassify employees as independent contractors.

U.S.D.O.L. budget includes a $67 million increase for worker protection agencies, including $14 million more to OSHA to add 60 enforcement staff and conduct 9 percent more inspections.

The EEOC budget includes an $18 million increase that will be used in part to hire 100 new investigators. Those additions come on top of the EEOC’s 2009 expansion.

OSHA has announced that they plan to increase the average fine for a serious violation from $1,000 to $3,000-$4,000.

The U.S.D.O.L. Wage and Hour Division launched its “We Can Help” campaign earlier this year. It essentially presents any employee who is unhappy with their pay with a forum for a nothing-to-lose wage complaint that can be submitted online or through a hotline.

In addition, the number of wage and hour lawsuits filed by employees against employers increased by 44 percent in 2009 over 2008, healthcare reform passed and President Obama recently appointed Craig Becker and Mark Pearce to the National Labor Relations Board, tilting the board very much in a pro-labor way.

To help North Carolina employers understand what these developments mean and how they will ultimately be affected, CAI is hosting its annual Employment and Labor Law Update on May 12 and13, 2010 at the McKimmon Center in Raleigh. CAI experts and experienced attorneys from Ogletree Deakins will discuss all of the recent changes and help companies understand what they need to worry about now and what they can move down the priority list.

Who We Are

CAI is a non-profit member based organization. We help more than 1,000 North Carolina member companies maximize employee engagement and minimize employer liability. We serve the greater Research Triangle, Piedmont, Triad and 65 central and eastern counties of North Carolina.